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11.05.2012

Lawyers "Without Chests"

"It is only with the heart that one can see rightly. What is essential is invisible to the eye." Antone de Saint-Exupery, The Little Prince

Many would say that this message delivered to the Little Prince in Saint-Exupery's philosophical allegory overstates the role the heart should play in decisions about the way we live our lives. On facing a judgment call, the more common encouragement would be to "think it through." Perhaps Saint-Exupery's point helps to balance an overly intellectual approach to life. In deciding how we act, especially on moral questions, we need both reason and intuition (a fair synonym for "heart" in this context).

Last week I posted a blog on another site about how Karl Llewellyn, as early as 1930, feared that law schools were producing "legal machines." See Best Practices for Legal Education (http://bestpracticeslegaled.albanylawblogs.org). Llewellyn hoped that, at some point, law students would develop a sense of social concern that went beyond cold legal analysis. He does not explain how the transformation would happen. One presumes that, as a legal realist, he hoped that the social milieu would influence students' decisions.

Perhaps the thinker who best recognized the difficulty of relying on logic, without the tempering influence of the heart, was C.S. Lewis. In his book, The Abolition of Man, particularly the chapter "Men Without Chests," Lewis decried the tendency of moderns to dispense with feelings and intuitions about right action, in favor of purely intellectual analysis. Specifically criticizing the manner in which students were being led to ignore their hearts, he stated: "In a sort of ghastly simplicity, we remove the organ and demand the function. We make men without chests and expect of them virtue and enterprise. We laugh at honour and are shocked to find traitors in our midst. We castrate and bid the geldings to be fruitful."

Like the English schools of which Lewis wrote, American law schools have for too longed stressed rational analysis without helping students to learn how to include their sense of decency, to consider what is right and just, in determining questions not only of the law but also of how they will practice law. "[The law school curriculum] teaches that tough-minded analysis, hard facts, and cold logic are the tools of the good lawyer, and it has little room for emotion, imagination, and morality.For some students, 'learning to think like a lawyer” means abandoning their ideals, ethical values, and sense of self.'" Roy Stuckey, et al., Best Practices for Legal Education 32 (2007) (quoting Gerald F. Hess, Heads and Hearts: The Teaching and Learning Environment in Law School, 52 J. LEGAL EDUC.75, 77 (2002)).

Yes, law students need to make arguments that are logical and identify those of an opponent that are not. But they also need to to recognize when their inborn sense of decency is telling them something beyond pure logic. Unless law schools encourage the latter with as much vigor as they have for over a century devoted themselves to the former, we will likely to continue to have too many lawyers "without chests." And legal academia should not complain when these lawyers display a lack of virtue--as many are sure to do.

2 comments:

How true! It is easy to consider black and white questions with "cold logic." However, the more likely grey areas we encounter on a day to day basis in the private practice of law require not only "tough-minded analysis" but also the innate and enlightened sense of right and wrong.

It can be tough to balance the need to promote the rule of law against the importance of thinking and acting virtuously. As with most challenges, practice brings improvement and it is important to practice incorporating the influence of the heart into our critical legal analysis. I think the Virginia Bar Association did an excellent job of that last week at the mandatory professionalism seminar. There was an emphasis on acting with integrity and good intentions, which will lessen the likelihood of violating black letter rules.

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Beyond the Rule is a blog recognizing that teaching a person to be a lawyer involves educating the whole person, and in particular assisting the law student to form a moral compass so that the student is more likely to develop a professional identity and practice law ethically.